New Jersey recently enacted a law that prohibits employers from stating in job advertisements that the unemployed need not apply. Effective June 1, 2011, the law provides that no employer shall ‘knowingly or purposely’ publish, in print or on the Internet, an advertisement for any job vacancy in the State of New Jersey that contains any provision that:
- the qualifications for a job include current employment;
- the employer will not consider or review an application for employment submitted by any job applicant currently unemployed; or
- the employer will only consider or review applications for employment submitted by job applicants who are currently employed.
An employer that violates the new law is subject to a penalty of $1,000 for the first violation; $5,000 for the second violation; and $10,000 for each subsequent violation. The law does not permit any private cause of action. The statute expressly provides that it does not prohibit an employer from publishing a job advertisement that sets forth other qualifications permitted by law including the holding of a current and valid professional license, certificate, registration, permit or other credential, or a minimum level of education, training or professional, occupational or field experience. Employers are also permitted to post job advertisements stating that only applicants who are currently employed by that employer will be considered.
An employer that violates the new law is subject to a penalty of $1,000 for the first violation; $5,000 for the second violation; and $10,000 for each subsequent violation. The law does not permit any private cause of action.
The New Jersey law does not prohibit employers from ultimately rejecting a job applicant because the applicant is unemployed. However, employers that make hiring decisions based on employment status may expose themselves to liability under federal anti-discrimination laws because members of certain racial and ethnic groups often experience unemployment on a disproportionate basis. On February 16, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) held a hearing to examine the treatment of unemployed job seekers. In addition, various advocacy organizations have recently expressed concern about the apparently growing practice of employers considering employment status in hiring.
New Jersey employers should review the content of their job advertisements to ensure compliance with the new law. In light of the EEOC’s interest in investigating the treatment of unemployed job seekers, employers nationwide should review their hiring policies and practices to proactively determine compliance.